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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) June 16, 1997
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AMERIGON INCORPORATED
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(Exact Name of Issuer as Specified in its Charter)
California 0-21810 95-431855-4
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(State or Other (Commission File Number) (IRS Employer
Jurisdiction Identification
of Incorporation Number)
Identification or
Organization)
404 East Huntington Drive, Monrovia, California 91016
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(Address of Principal Executive Offices) (Zip Code)
(Registrant's telephone number, including area code) (818) 932-1200
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(Former Name or Former Address, if Changed Since Last Report)
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ITEM 5. OTHER EVENTS
The Board of Directors of Amerigon Incorporated (the "Company") have
approved the Company's Amended and Restated Bylaws in the form attached as
Exhibit 3.1 to this Report.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
The following exhibit is filed as part of this Report:
3.1 Amended and Restated Bylaws of Amerigon Incorporated.
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SIGNATURES
Pursuant to the requirement of the Securities Exchange Act of 1934,
as amended, the Company has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
Dated: June 16, 1997 AMERIGON INCORPORATED
By: /s/ Lon E. Bell
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Name: Lon E. Bell, Ph.D.
Its: Chairman of the Board and Chief Executive Officer
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AMENDED AND RESTATED BYLAWS
OF
AMERIGON INCORPORATED
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AMENDED AND RESTATED BYLAWS
OF
AMERIGON INCORPORATED
TABLE OF CONTENTS
PAGE
ARTICLE I
OFFICES
Section 1. PRINCIPAL OFFICES........................................ 1
Section 2. OTHER OFFICES............................................ 1
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. PLACE OF MEETINGS........................................ 1
Section 2. ANNUAL MEETING........................................... 1
Section 3. SPECIAL MEETINGS......................................... 2
Section 4. NOTICE OF MEETINGS OF SHAREHOLDERS....................... 2
Section 5. MANNER OF GIVING NOTICE; AFFIDAVIT OF
NOTICE................................................... 3
Section 6. QUORUM................................................... 3
Section 7. ADJOURNED MEETING; NOTICE................................ 4
Section 8. VOTING................................................... 4
Section 9. WAIVER OF NOTICE OR CONSENT BY ABSENT
SHAREHOLDERS............................................. 5
Section 10. SHAREHOLDER ACTION BY WRITTEN CONSENT,
WITHOUT A MEETING........................................ 5
Section 11. RECORD DATE FOR SHAREHOLDER NOTICE,
VOTING AND GIVING CONSENTS............................... 6
Section 12. PROXIES.................................................. 7
Section 13. INSPECTORS OF ELECTION................................... 7
ARTICLE III
DIRECTORS
Section 1. POWERS................................................... 8
Section 2. NUMBER AND QUALIFICATION OF DIRECTORS.................... 8
Section 3. ELECTION AND TERM OF OFFICE OF
DIRECTORS................................................ 9
Section 4. VACANCIES................................................ 9
Section 5. PLACE OF MEETINGS AND MEETINGS BY
TELEPHONE................................................ 10
Section 6. REGULAR MEETINGS......................................... 10
Section 7. SPECIAL MEETINGS......................................... 10
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Section 8. QUORUM................................................... 11
Section 9. WAIVER OF NOTICE......................................... 11
Section 10. ADJOURNMENT.............................................. 11
Section 11. NOTICE OF ADJOURNMENT.................................... 11
Section 12. ACTION WITHOUT MEETING................................... 11
Section 13. FEES AND COMPENSATION OF DIRECTORS....................... 12
ARTICLE IV
COMMITTEES
Section 1. COMMITTEES OF DIRECTORS.................................. 12
Section 2. MEETINGS AND ACTION OF COMMITTEES........................ 13
ARTICLE V
OFFICERS
Section 1. OFFICERS................................................. 13
Section 2. ELECTION OF OFFICERS..................................... 13
Section 3. SUBORDINATE OFFICERS..................................... 13
Section 4. REMOVAL AND RESIGNATION OF OFFICERS...................... 14
Section 5. VACANCIES IN OFFICES..................................... 14
Section 6. CHAIRMAN OF THE BOARD.................................... 14
Section 7. CHIEF EXECUTIVE OFFICER.................................. 14
Section 8. PRESIDENT................................................ 15
Section 9. VICE-PRESIDENTS.......................................... 15
Section 10. SECRETARY................................................ 15
Section 11. TREASURER AND CHIEF FINANCIAL OFFICER.................... 16
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER AGENTS
ARTICLE VII
RECORDS AND REPORTS
Section 1. MAINTENANCE AND INSPECTION OF SHARE
REGISTER................................................. 17
Section 2. MAINTENANCE AND INSPECTION OF BYLAWS..................... 17
Section 3. MAINTENANCE AND INSPECTION OF OTHER
CORPORATE RECORDS........................................ 18
Section 4. INSPECTION BY DIRECTORS.................................. 18
Section 5. ANNUAL REPORT TO SHAREHOLDERS............................ 18
Section 6. FINANCIAL STATEMENTS..................................... 18
Section 7. ANNUAL STATEMENT OF GENERAL INFORMATION.................. 19
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ARTICLE VIII
GENERAL CORPORATE MATTERS
Section 1. RECORD DATE FOR PURPOSES OTHER THAN
NOTICE AND VOTING........................................ 20
Section 2. CHECKS, DRAFTS, EVIDENCE OF
INDEBTEDNESS............................................. 20
Section 3. EXECUTION OF CORPORATE CONTRACTS AND
INSTRUMENTS.............................................. 20
Section 4. CERTIFICATES FOR SHARES.................................. 20
Section 5. LOST CERTIFICATES........................................ 21
Section 6. REPRESENTATION OF SHARES OF OTHER
CORPORATIONS............................................. 21
Section 7. CONSTRUCTION AND DEFINITIONS............................. 21
ARTICLE IX
AMENDMENTS
Section 1. AMENDMENT BY SHAREHOLDERS................................ 22
Section 2. AMENDMENT BY DIRECTORS................................... 22
ARTICLE X
CLASS B COMMON STOCK
Section 1. NON-TRANSFERABILITY...................................... 22
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AMENDED AND RESTATED BYLAWS
OF
AMERIGON INCORPORATED
The Bylaws of Amerigon Incorporated are hereby restated as follows:
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICES.
The Board of Director shall fix the location of the principal executive
office of the Corporation at any place within or outside the State of
California. If the principal executive office is located outside the State of
California and the Corporation has one or more business offices in the State of
California, the Board of Directors shall fix and designate a principal business
office in the State of California.
SECTION 2. OTHER OFFICES.
The Board of Directors may at any time establish branch or subordinate
offices at any place or places it may choose from time to time.
ARTICLE II
MEETINGS OF SHAREHOLDERS
SECTION 1. PLACE OF MEETINGS.
Meetings of shareholders shall be held at any place within or outside the
State of California designated by the Board of Directors. In the absence of any
such designation, meetings of shareholders shall be held at the principal
executive office of the Corporation.
SECTION 2. ANNUAL MEETING.
The annual meeting of shareholders shall be held on such date and at such
time as the Board of Directors may determine. However, if this day falls on a
legal holiday, the meeting shall be held at the same time and place on the next
succeeding full business day. The annual meeting shall be held at the
Corporation's principal offices or at any other location as may be determined by
the Board of Directors. At each annual meeting, directors shall be elected and
any other proper business may be transacted.
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SECTION 3. SPECIAL MEETINGS.
A special meeting of the shareholders may be called at any time by the
Board of Directors, the Chairman of the Board of Directors, the President, or
one or more shareholders holding shares in the aggregate entitled to cast not
less than 10% of the votes at such meeting.
If a special meeting is called by any person or persons other than the
Board of Directors, the request shall be in writing, specifying the time of
such meeting and the general nature of the business proposed to be transacted,
and shall be delivered personally or sent by registered mail or by telegraphic
or other facsimile transmission to the Chairman of the Board of Directors, the
President, any Vice-President or the Secretary of the Corporation. The
officer receiving the request shall promptly cause notice to be given to the
shareholders entitled to vote, in accordance with the provisions of Sections 4
and 5 of this Article II, that a meeting will be held at the time requested by
the person or persons calling the meeting, not fewer than 35 days or more than
60 days after the receipt of the request. If such notice is not given within
20 days after the receipt of the request, the person or persons requesting the
meeting may give the notice. Nothing contained in this paragraph of this
Section 3 shall be construed as limiting, fixing or affecting the time when a
meeting of shareholders called by action of the Board of Directors may be held.
SECTION 4. NOTICE OF MEETINGS OF SHAREHOLDERS.
All notices of meetings of shareholders shall be sent or otherwise given in
accordance with Section 5 of this Article II not less than 10 days or more than
60 days before the date of the meeting. Such notice shall specify the place,
date, and hour of the meeting and (i) in the case of a special meeting, the
general nature of the business to be transacted, or (ii) in the case of the
annual meeting, those matters that the Board of Directors, at the time of giving
the notice, intends to present for action by the shareholders. The notice of
any meeting at which directors are to be elected shall include the name of any
nominee or nominees whom, at the time of the notice, management intends to
present for election.
If action is proposed to be taken at any meeting for approval of (i) a
contract or transaction in which a director has a direct or indirect financial
interest, pursuant to Section 310 of the Corporations Code of California, (ii)
an amendment of the Articles of Incorporation, pursuant to Section 902 of such
Code, (iii) a reorganization of the Corporation, pursuant to Section 1201 of
such Code, (iv) a voluntary dissolution of the Corporation, pursuant to Section
1900 of such Code, or (v) a distribution in dissolution other than in accordance
with the rights of outstanding preferred shares, pursuant to Section 2007
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of such Code, the notice shall also state the general nature of such proposal.
SECTION 5. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE.
Notice of any meeting of shareholders shall be given either personally or
by first-class mail or telegraphic or other written communication, charges
prepaid, addressed to each shareholder at the address of such shareholder
appearing on the books of the Corporation or given by the shareholder to the
Corporation for the purpose of notice. If the Corporation's outstanding shares
are held by 500 or more persons on the record date for the shareholders'
meeting, notice may be sent by third-class mail. If no such address appears on
the books of the Corporation or is given, notice shall be deemed to have been
given if sent to a shareholder by first-class mail or telegraphic or other
written communication to the Corporation's principal executive office, or if
published at least once in a newspaper of general circulation in the county
where such office is located. Notice shall be deemed to have been given at the
time when delivered personally or deposited in the mail or sent by telegram or
other means of written communication.
If any notice addressed to a shareholder at the address of such shareholder
appearing on the books of the Corporation is returned to the Corporation by the
United States Postal Service marked to indicate that the United States Postal
Service is unable to deliver such notice to such shareholder at such address,
each future notice and report shall be deemed to have been duly given without
further mailing if it shall be available to the shareholder on written demand by
the shareholder at the principal executive office of the Corporation for a
period of one year from the date of the giving of such notice or report.
An affidavit of the mailing or other means of giving any notice of any
meeting of shareholders shall be executed by the Secretary, Assistant Secretary
or any transfer agent of the Corporation giving the notice and shall be filed
and maintained in the minutes book of the Corporation.
SECTION 6. QUORUM.
The presence in person or by proxy of the holders of a majority of the
shares entitled to vote at a meeting of shareholders shall constitute a quorum
for the transaction of business at such meeting. The shareholders in attendance
at a duly called or held meeting at which a quorum is present may continue to do
business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum.
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SECTION 7. ADJOURNED MEETING; NOTICE.
Any meeting of shareholders, annual or special, whether or not a quorum is
present, may be adjourned from time to time by the vote of the majority of the
shares represented at such meeting, either in person or by proxy; but in the
absence of a quorum, no other business may be transacted at such meeting, except
as provided in Section 6 of this Article II.
When any meeting of shareholders, annual or special, is adjourned to
another time or place, notice need not be given of the adjourned meeting if the
time and place are announced at a meeting at which the adjournment is taken,
unless a new record date for the adjourned meeting is fixed or unless the
adjournment is for more than 45 days from the date set for the original meeting,
in which case the Board of Directors shall set a new record date. Notice of any
such adjourned meeting shall be given to each shareholder of record entitled to
vote at the adjourned meeting in accordance with the provisions of Sections 4
and 5 of this Article II. At any adjourned meeting, the Corporation may
transact any business that might have been transacted at the original meeting.
SECTION 8. VOTING.
The shareholders entitled to vote at any meeting of shareholders shall be
determined in accordance with the provisions of Section 11 of this Article II,
subject to the provisions of Sections 702 to 704, inclusive, of the Corporations
Code of California (relating to voting shares held by a fiduciary or in joint
ownership). The shareholders' vote may be by voice vote or by ballot; provided,
however, that any election of directors must be by ballot if demanded by any
shareholder before the voting has begun. On any matter other than the election
of directors, any shareholder may vote part of the shares in favor of the
proposal and refrain from voting the remaining shares or vote them against the
proposal; but if a shareholder fails to specify the number of shares such
shareholder is voting affirmatively, it shall be presumed conclusively that such
shareholder's approving vote is with respect to all shares that such shareholder
is entitled to vote. Except as provided in Section 6 of this Article II and in
the election of directors, the affirmative vote of a majority of the shares
represented and voting at a duly held meeting at which a quorum is present
(which shares voting affirmatively also constitute at least a majority of the
required quorum) shall be the act of the shareholders, unless the vote of a
greater number or voting by classes is required by California General
Corporation Law or the Articles of Incorporation.
At a meeting of shareholders at which directors are to be elected, no
shareholder shall be entitled to cumulate votes (I.E., cast for any one or more
candidates a number of votes
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greater than the number of such shareholder's shares) unless the candidates'
names have been placed in nomination prior to commencement of the voting and a
shareholder has given notice prior to commencement of the voting of such
shareholder's intention to cumulate votes. If any shareholder has given such a
notice, every shareholder entitled to vote may cumulate votes for candidates in
the number of directors to be elected multiplied by the number of votes to which
such shareholder's shares are entitled or distribute such shareholder's votes on
the same principle among any or all of the candidates as the shareholder thinks
fit. In the election of directors, the candidates receiving the highest number
of votes, up to the number of directors to be elected, shall be elected.
SECTION 9. WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDERS.
The transactions of any meeting of shareholders, annual or special, however
called and noticed and wherever held, shall be as valid as though they had
occurred at a meeting duly held after regular call and notice, if a quorum is
present either in person or by proxy, and if, either before or after such
meeting, each person entitled to vote who was not present in person or by proxy
signs a written waiver of notice or a consent to a holding of such meeting or an
approval of the minutes thereof. Such waiver of notice or consent need not
specify either the business to be transacted or the purpose of any annual or
special meeting of shareholders, except that if action is taken or proposed to
be taken for approval of any of those matters specified in the second paragraph
of Section 4 of this Article II, the waiver of notice or consent shall state the
general nature of the proposal. All such waivers, consents or approvals shall
be filed with the corporate records or made a part of the minutes of the
meeting.
Attendance by a person at a meeting shall also constitute a waiver of
notice of such meeting, except that when the person objects at the beginning of
the meeting to the transaction of any business thereat because such meeting is
not lawfully called or convened, and except that attendance at a meeting is not
a waiver of any right to object to the consideration of matters not included in
the notice of such meeting if an objection is expressly made at such meeting.
SECTION 10. SHAREHOLDER ACTION BY WRITTEN CONSENT, WITHOUT A MEETING.
Any action that may be taken at any annual or special meeting of
shareholders may be taken without a meeting and without prior notice if a
consent in writing, setting forth the action so taken, is signed by the holders
of outstanding shares having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which all
shares entitled to vote on such action were present and
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voted. In the case of the election of directors, such a consent shall be
effective only if signed by the holders of all outstanding shares entitled to
vote for the election of directors; provided, however, that by the written
consent of the holders of a majority of the outstanding shares entitled to vote
for the election of directors, a director may be elected at any time to fill a
vacancy on the Board of Directors that has not been filled by the directors.
All such consents shall be filed with the Secretary of the Corporation and shall
be maintained in the corporate records. Any shareholder giving a written
consent or the shareholder's proxy holders or a transferee of the shares or a
personal representative of the shareholder or their respective proxy holders may
revoke the consent by a writing received by the Secretary of the Corporation
before written consents of the number of shares required to authorize the
proposed action have been filed with the Secretary.
If the consents of all shareholders entitled to vote have not been
solicited in writing, and if the unanimous written consent of all shareholders
has not been received, the Secretary shall give prompt notice of the corporate
action approved by the shareholders without a meeting. Such notice shall be
given in the manner specified in Section 5 of this Article II. In the case of
approval of (i) contracts or transactions in which a director has a direct or
indirect financial interest, pursuant to Section 310 of the Corporations Code of
California, (ii) indemnification of agents of the corporation, pursuant to
Section 317 of such Code, (iii) a reorganization of the Corporation, pursuant to
Section 1201 of such Code, and (iv) a distribution in dissolution other than in
accordance with the rights of outstanding preferred shares, pursuant to Section
2007 of such Code, such notice shall be given at least ten days before the
consummation of any action authorized by such approval.
SECTION 11. RECORD DATE FOR SHAREHOLDER NOTICE, VOTING AND GIVING
CONSENTS.
For purposes of determining the shareholders entitled to receive notice of
any meeting or to give consent to corporate action without a meeting, the Board
of Directors may fix in advance a record date, which shall not be more than 60
days or less than 10 days before the date of any such meeting nor more than 60
days before any such action without a meeting. In this event, only shareholders
of record on the date so fixed are entitled to receive notice and to vote or to
give consents, as the case may be, notwithstanding any transfer of any shares on
the books of the Corporation after the record date, except as otherwise provided
in the California General Corporation Law.
If the Board of Directors does not so fix a record date:
(a) The record date for determining shareholders entitled to receive
notice of or to vote at a meeting of
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shareholders shall be at the close of business on the business day next
preceding the day on which notice is given or, if notice is waived, at the close
of business on the business day next preceding the date on which the meeting is
held: or
(b) The record date for determining shareholders entitled to give
consent to corporate action in writing without a meeting, (i) when no prior
action by the Board of Directors has been taken, shall be the day on which the
first written consent is given, or (ii) when prior action of the Board has been
taken, shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating to that action or at the close of
business on the sixtieth day before the date of such other action, whichever is
later.
SECTION 12. PROXIES.
Every person entitled to vote for directors or on any other matter shall
have the right to do so either in person or by one or more agents authorized by
a written proxy signed by the person and filed with the Secretary of the
Corporation. A proxy shall be deemed signed if the shareholder's name is placed
on the proxy (whether by manual signature, typewriting, telegraphic transmission
or otherwise) by the shareholder or the shareholder's attorney-in-fact. A
validly executed proxy that does not state that it is irrevocable shall continue
in full force and effect unless (i) revoked by the person executing it, before
the vote pursuant to such proxy, by a writing delivered to the Corporation
stating that such proxy is revoked, or by a subsequent proxy executed by, or
attendance at the meeting and voting in person by, the person executing such
proxy; or (ii) written notice of the death or incapacity of the maker of such
proxy is received by the Corporation before the vote pursuant to such proxy is
counted; provided, however, that no proxy shall be valid after the expiration of
eleven months from the date of the proxy unless otherwise provided in the proxy.
The revocability of a proxy that states on its face that it is irrevocable shall
be governed by the provisions of Sections 705(e) and 705(f) of the Corporations
Code of California.
SECTION 13. INSPECTORS OF ELECTION.
Before any meeting of shareholders, the Board of Directors may appoint any
persons other than nominees for office to act as inspectors of election at the
meeting or its adjournment. If no inspectors of election are so appointed, the
chairman of the meeting may, and on the request of any shareholder or a
shareholder's proxy shall, appoint inspectors of election at the meeting. The
number of such inspectors shall be either one or three. If such inspectors are
appointed at a meeting on the request of one or more shareholders or proxies,
the holders of a majority of shares or their proxies present at the meeting
shall determine whether one or three inspectors are to be appointed.
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If any person appointed as inspector fails to appear or fails or refuses to act,
the chairman of the meeting may, and upon the request of any shareholder or a
shareholder's proxy shall, appoint a person to fill that vacancy.
Such inspectors shall:
(a) Determine the number of shares outstanding and the voting power
of each, the shares represented at the meeting, the existence of a quorum, and
the authenticity, validity, and effect of proxies;
(b) Receive votes, ballots or consents;
(c) Hear and determine all challenges and questions in any way
arising in connection with the right to vote;
(d) Count and tabulate all votes or consents;
(e) Determine when the polls shall close;
(f) Determine the result; and
(g) Do any other acts that may be proper to conduct the election or
vote with fairness to all shareholders.
ARTICLE III
DIRECTORS
SECTION 1. POWERS.
Subject to the provisions of the California General Corporation Law and any
limitations in the Articles of Incorporation and these Bylaws relating to action
required to be approved by the shareholders or by the outstanding shares, the
business and affairs of the Corporation shall be managed and all corporate
powers shall be exercised by or under the direction of the Board of Directors.
SECTION 2. NUMBER AND QUALIFICATION OF DIRECTORS.
The number of directors of the Corporation shall not be less than five nor
more than nine. The exact number of directors shall be specified by a
resolution duly adopted by the Board of Directors or shareholders. A bylaw
change specifying or changing a fixed number of directors or the maximum or
minimum number of directors or changing from a fixed to a variable board or vice
versa may only be adopted by approval of the outstanding shares; provided,
however, that a bylaw or amendment of the articles reducing the fixed number or
the minimum number of directors to a number less than five cannot be adopted if
the votes cast against its adoption at a meeting, or the shares not consenting
in the
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case of action by written consent, are equal to more than 16 2/3 percent of the
outstanding shares entitled to vote. No amendment may change the stated maximum
number of authorized directors to a number greater than two times the stated
minimum number of directors minus one.
SECTION 3. ELECTION AND TERM OF OFFICE OF DIRECTORS.
Directors shall be elected at each annual meeting of shareholders to hold
office until the next annual meeting. Each director, including a director
elected to fill a vacancy, shall hold office until the expiration of the term
for which elected and until a successor has been elected and qualified.
SECTION 4. VACANCIES.
Vacancies on the Board of Directors may be filled by a majority of the
remaining directors, though less than a quorum, or by a sole remaining director,
except that a vacancy created by the removal of a director by the vote or
written consent of the shareholders or by court order may be filled only by the
vote of a majority of the shares entitled to vote represented at a duly held
meeting at which a quorum is present, or by the written consent of holders of a
majority of the outstanding shares entitled to vote. Each director so elected
shall hold office until the next annual meeting of shareholders and until a
successor has been elected and qualified.
A vacancy or vacancies on the Board of Directors shall be deemed to exist
in the event of the death, resignation or removal of any director, or if the
Board of Directors by resolution declares vacant the office of a director who
has been declared of unsound mind by an order of court or who has been convicted
of a felony, or if the authorized number of directors is increased, or if the
shareholders fail, at any meeting of shareholders at which any director or
directors are elected, to elect the number of directors to be elected at such
meeting.
The shareholders may elect a director or directors at any time to fill any
vacancy or vacancies not filled by the directors, but any such election by
written consent shall require the consent of a majority of the outstanding
shares entitled to vote.
Any director may resign effective on giving written notice to the Chairman
of the Board of Directors, the President, the Secretary or the Board of
Directors, unless the notice specifies a later time for that resignation to
become effective. If the resignation of a director is effective at a later
time, the Board of Directors may elect a successor to take office when the
resignation becomes effective.
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No reduction of the authorized number of directors shall have the effect of
removing any director before the expiration of such director's term of office.
SECTION 5. PLACE OF MEETINGS AND MEETINGS BY TELEPHONE.
Regular meetings of the Board of Directors may be held at any place within
or outside the State of California that has been designated from time to time by
resolution of the Board. In the absence of such a designation, regular meetings
shall be held at the principal executive office of the Corporation. Special
meetings of the Board shall be held at any place within or outside the State of
California that has been designated in the notice of the meeting or, if not
stated in the notice or if there is no notice, at the principal executive office
of the Corporation. Any meeting, regular or special, may be held by conference
telephone or similar communication equipment, so long as all directors
participating in the meeting can hear one another, and all such directors shall
be deemed to be present in person at the meeting.
SECTION 6. REGULAR MEETINGS.
Regular meetings of the Board of Directors shall be held without call at
such time as shall from time to time be fixed by the Board of Directors. Such
regular meetings may be held without notice.
SECTION 7. SPECIAL MEETINGS.
Special meetings of the Board of Directors for any purpose or purposes may
be called at any time by the Chairman of the Board of Directors, the President,
any Vice-President, the Secretary or any two directors.
Notice of the time and place of such special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail or
telegram, charges prepaid, addressed to each director at such director's address
as is shown on the records of the Corporation. In case such notice is mailed,
it shall be deposited in the United States mail at least four days before the
time of the holding of such meeting. In case such notice is delivered
personally, or by telephone or telegram, it shall be delivered personally or by
telephone or to the telegraph company at least 48 hours before the time of the
holding of such meeting. Any oral notice given personally or by telephone may
be communicated either to the director or to a person at the office of the
director whom the person giving such notice has reason to believe will promptly
communicate it to such director. The notice need not specify the purpose of the
meeting or the place if the meeting is to be held at the principal executive
office of the Corporation.
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SECTION 8. QUORUM.
A majority of the authorized number of directors shall constitute a quorum
for the transaction of business, except to adjourn as provided in Section 10 of
this Article III. Every act or decision done or made by a majority of the
directors present at a meeting duly held at which a quorum is present shall be
regarded as the act of the Board of Directors, subject to the provisions of
Section 310 of the Corporations Code of California (as to approval of contracts
or transactions in which a director has a direct or indirect material financial
interest), Section 311 of such Code (as to appointment of committees) and
Section 317(e) of such Code (as to indemnification of directors). A meeting at
which a quorum initially is present may continue to transact business
notwithstanding the withdrawal of directors, provided any action taken is
approved by at least a majority of the required quorum for such meeting.
SECTION 9. WAIVER OF NOTICE.
The transactions of any meeting of the Board of Directors, however called
and noticed, and wherever held, shall be as valid as though they had occurred at
a meeting duly held after regular call and notice if a quorum is present and if,
either before or after such meeting, each of the directors not present signs a
written waiver of notice, a consent to hold such meeting or an approval of the
minutes. The waiver of notice or consent need not specify the purpose of such
meeting. All such waivers, consents and approvals shall be filed with the
corporate records or made a part of the minutes of such meeting. Notice of a
meeting shall also be deemed given to any director who attends the meeting
without protesting, before or at its commencement, the lack of notice to such
director.
SECTION 10. ADJOURNMENT.
A majority of the directors present, whether or not constituting a quorum,
may adjourn any meeting to another time and place.
SECTION 11. NOTICE OF ADJOURNMENT.
Notice of the time and place of holding an adjourned meeting need not be
given, unless the meeting is adjourned for more than 24 hours, in which case
notice of the time and place shall be given before the time of the adjourned
meeting in the manner specified in Section 7 of this Article III to the
directors who were not present at the time of the adjournment.
SECTION 12. ACTION WITHOUT MEETING.
Any action required or permitted to be taken by the Board of Directors may
be taken without a meeting if all members of the
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Board shall individually or collectively consent in writing to such action.
Such action by written consent shall have the same force and effect as a
unanimous vote of the Board of Directors. Such written consent or consents
shall be filed with the minutes of the proceedings of the Board of Directors.
SECTION 13. FEES AND COMPENSATION OF DIRECTORS.
Directors and members of committees may receive such compensation, if any,
for their services and such reimbursement of expenses as may be fixed or
determined by resolution of the Board of Directors. This Section 13 shall not
be construed to preclude any director from serving the Corporation in any other
capacity as an officer, agent, employee or otherwise, and receiving compensation
for such service.
ARTICLE IV
COMMITTEES
SECTION 1. COMMITTEES OF DIRECTORS.
The Board of Directors may, by resolution adopted by a majority of the
authorized number of directors, designate one or more committees, each
consisting of two or more directors, to serve at the pleasure of the Board. The
Board may designate one or more directors as alternate members of any such
committee, who may replace any absent member at any meeting of such committee.
Any committee, to the extent provided in such a resolution of the Board, shall
have all the authority of the Board, except with respect to:
(a) The approval of any action that, under the California General
Corporation Law, also requires shareholders' approval or approval of the
outstanding shares;
(b) The filling of vacancies on the Board of Directors or in any
committee;
(c) The fixing of compensation of the directors for serving on the
Board of Directors or on any committee:
(d) The amendment or repeal of bylaws or the adoption of new bylaws;
(e) The amendment or repeal of any resolution of the Board of
Directors that by its express terms is not so amendable or repealable;
(f) A distribution to the shareholders of the Corporation, except at
a rate or in a periodic amount or within a price range determined by the Board
of Directors; and
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(g) The appointment of any other committees of the Board of Directors
or the members of such committees.
SECTION 2. MEETINGS AND ACTION OF COMMITTEES.
Meetings and actions of committees shall be governed by, and held and taken
in accordance with, the provisions of Sections 5 (place of meetings), 6 (regular
meetings), 7 (special meetings), 8 (quorum), 9 (waiver of notice), 10
(adjournment), 11 (notice of adjournment), and 12 (action without meeting) of
Article III, with such changes in the context of such Bylaws as are necessary to
substitute the committee and its members for the Board of Directors and its
members, except that the time of regular meetings of committees may be
determined either by resolution of the Board of Directors or by resolution of
the committee; special meetings of committees also may be called by resolution
of the Board of Directors; and notice of special meetings of committees also
shall be given to all alternate members, who shall have the right to attend all
meetings of the committee. The Board of Directors may adopt rules for the
government of any committee not inconsistent with the provisions of these
Bylaws.
ARTICLE V
OFFICERS
SECTION 1. OFFICERS.
The officers of the Corporation shall be a Chief Executive Officer, a
President, a Secretary, and a Treasurer and Chief Financial Officer. The
Corporation may also have, at the discretion of the Board of Directors, a
Chairman of the Board, one or more Vice Presidents, one or more Assistant
Secretaries, one or more Assistant Treasurers, one or more Assistant Treasurers,
and other officers as may be elected or appointed in accordance with the
provisions of Section 3 of this Article V. Any number of offices may be held
by the same person.
SECTION 2. ELECTION OF OFFICERS.
The officers of the Corporation, except such officers as may be appointed
in accordance with the provisions of Section 3 or Section 5 of this Article V,
shall be chosen by the Board of Directors, and each shall serve at the pleasure
of the Board, subject to the rights, if any, of any officer under any contract
of employment.
SECTION 3. SUBORDINATE OFFICERS.
The Board of Directors may appoint, and may empower the President to
appoint, such other officers as the business of the Corporation may require,
each of whom shall hold office for such
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period, have such authority and perform such duties as are provided in the
Bylaws or as the Board of Directors may from time to time determine.
SECTION 4. REMOVAL AND RESIGNATION OF OFFICERS.
Subject to the rights, if any, of an officer under any contract of
employment, any officer may be removed, either with or without cause, by the
Board of Directors at any regular or special meeting of the Board or, except in
the case of any officer chosen by the Board of Directors, by any officer upon
whom such power of removal may be conferred by the Board of Directors.
Any officer may resign at any time by giving written notice to the
Corporation. Any resignation shall take effect at the date of the receipt of
such notice or at any later time specified in such notice; and, unless otherwise
specified in such notice, the acceptance of such resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the Corporation under any contract to which the resigning
officer is a party.
SECTION 5. VACANCIES IN OFFICES.
A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed in
these Bylaws for regular appointments to such office.
SECTION 6. CHAIRMAN OF THE BOARD.
The Chairman of the Board of Directors, if such an officer be chosen,
shall, if present, preside at meetings of the Board of Directors and exercise
and perform such other powers and duties as from time to time may be assigned to
him by the Board of Directors or prescribed by these Bylaws. If there is no
President, the Chairman of the Board of Directors shall in addition be the Chief
Executive Officer of the Corporation and shall have the powers and duties
prescribed in Section 8 of this Article V.
SECTION 7. CHIEF EXECUTIVE OFFICER.
The Chief Executive Officer shall be the general manager and chief
executive officer of the Corporation and has, subject to the control of the
Board of Directors, general supervision, direction and control of the business
and officers of the Corporation. The Chief Executive Officer shall have the
general powers and duties of management usually vested in the offices of general
manager and chief executive officer of a corporation and such other powers and
duties as may be prescribed by the Board of Directors.
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SECTION 8. PRESIDENT.
The President shall be the chief operating officer of the Corporation and
shall have, subject to the control of the Board of Directors and the Chief
Executive Officer, general supervision, direction, and control of the operations
of the Corporation. In the absence of the Chairman of the Board of Directors,
the President shall preside at all meetings of the shareholders and at all
meetings of the Board of Directors. The President shall have the general powers
and duties of management usually vested in the offices of president and chief
operating officer of a corporation and such other powers and duties as may be
prescribed by the Board of Directors.
SECTION 9. VICE-PRESIDENTS.
In the absence or disability of the President, the Vice-Presidents, if any,
in order of their rank as fixed by the Board of Directors or, if not ranked, a
Vice-President designated by the Board of Directors, shall perform all the
duties of the President and, when so acting, shall have all the powers of, and
be subject to all the restrictions upon, the President. The Vice-Presidents
shall have such other powers and perform such other duties as from time to time
may be prescribed for them by the Board of Directors, the Chairman of the Board,
the President or these Bylaws.
SECTION 10. SECRETARY.
The Secretary shall keep or cause to be kept, at the principal executive
office or such other place as the Board of Directors may direct, a book of
minutes of all meetings and actions of directors, committees of directors and
shareholders, with the time and place of holding, whether regular or special
and, if special, how authorized, the notice given, the names of those present at
Board meetings or committee meetings, the number of shares present or
represented at meetings of shareholders and the proceedings.
The Secretary shall keep, or cause to be kept, at the principal executive
office or at the office of the Corporation's transfer agent or registrar, as
determined by resolution of the Board of Directors, a share register or a
duplicate share register showing the names of all shareholders and their
addresses, the number and classes of shares held by each, the number and date of
certificates issued for the same and the number and date of cancellation of
every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all meetings of
shareholders and of the Board of Directors required by these Bylaws or by law to
be given, and he shall keep in safe custody the seal of the Corporation, if one
is adopted,
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and shall have such other powers and perform such other duties as may be
prescribed by the Board of Directors or by these Bylaws.
SECTION 11. TREASURER AND CHIEF FINANCIAL OFFICER.
The Treasurer and Chief Financial Officer shall keep and maintain, or cause
to be kept and maintained, adequate and correct books and records of accounts of
the properties and business transactions of the Corporation, including accounts
of its assets, liabilities, receipts, disbursements, gains, losses, capital,
retained earnings and shares. The books of account shall at all reasonable
times be open to inspection by any director.
The Treasurer and Chief Financial Officer shall deposit all money and other
valuables in the name and to the credit of the Corporation with such
depositaries as may be designated by the Board of Directors. He shall disburse
the funds of the Corporation as may be ordered by the Board of Directors, shall
render to the President and directors, whenever they request it, an account of
all of his transactions as Treasurer and Chief Financial Officer and of the
financial condition of the Corporation, and shall have such other powers and
perform such other duties as may be prescribed by the Board of Directors or
these Bylaws.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER AGENTS
The Corporation shall, to the maximum extent permitted by the California
General Corporation Law, indemnify each of its officers and directors and may
indemnify each of its other agents against expenses, judgments, fines,
settlements and other amounts actually and reasonably incurred in connection
with any proceeding arising by reason of the fact that any such person is or was
an agent of the Corporation. For purposes of this Article VI, an "agent" of the
Corporation includes any person who is or was a director, officer, employee or
other agent of the Corporation; or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise; or was a director,
officer, employee or agent of a predecessor corporation of the Corporation or of
another enterprise at the request of such predecessor corporation.
The indemnification provided by, or granted pursuant to, this Article VI
shall not be deemed exclusive of any other rights to which any person seeking
indemnification or advancement of expenses may be entitled under any Bylaws,
agreement, vote of shareholders or disinterested directors or otherwise, both as
to
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action in his official capacity and as to action in another capacity while
holding such office. No provision of these Bylaws shall limit or prohibit
indemnification by the Corporation to the fullest extent permitted by California
law.
ARTICLE VII
RECORDS AND REPORTS
SECTION 1. MAINTENANCE AND INSPECTION OF SHARE REGISTER.
The Corporation shall keep at its principal executive office or at the
office of its transfer agent or registrar, if either be designated and as
determined by resolution of the Board of Directors, a record of its
shareholders, giving the names and addresses of all shareholders and the number
and class of shares held by each shareholder.
A shareholder or shareholders of the Corporation holding at least 5% in the
aggregate of the outstanding voting shares of the Corporation may (i) inspect
and copy the record of shareholders' names and addresses and shareholdings
during usual business hours, on five days' prior written demand on the
Corporation, and (ii) obtain from the transfer agent of the Corporation, on
written demand and on the tender of such transfer agent's usual charges for such
list, a list of the names and addresses of the shareholders who are entitled to
vote for the election of directors, and their shareholdings, as of the most
recent record date for which such list has been compiled or as of a date
specified by such shareholder or shareholders after the date of demand. Such
list shall be made available to any such shareholder by the transfer agent on or
before the later of five days after the demand is received or the date specified
in the demand as the date as of which such list is to be compiled. The record
of shareholders shall also be open to inspection on the written demand of any
shareholder or holder of a voting trust certificate, at any time during usual
business hours, for a purpose reasonably related to the holder's interests as a
shareholder or as the holder of a voting trust certificate. Any inspection and
copying under this Section 1 may be made in person or by an agent or attorney of
the shareholder or a holder of a voting trust certificate making the demand.
SECTION 2. MAINTENANCE AND INSPECTION OF BYLAWS.
The Corporation shall keep at its principal executive office or if its
principal executive office is not in the State of California, at its principal
business office in the State of California, the original or a copy of these
Bylaws as amended to date, which shall be open to inspection by the shareholders
at all reasonable times during office hours. If the principal executive office
of the Corporation is outside the State of
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California and the Corporation has no principal business office in the State of
California, the Secretary shall, upon the written request of any shareholder,
furnish to such shareholder a copy of these Bylaws as amended to date.
SECTION 3. MAINTENANCE AND INSPECTION OF OTHER CORPORATE RECORDS.
The accounting books and records and minutes of proceedings of the
shareholders and the Board of Directors and any committee or committees of the
Board of Directors shall be kept at such place or places as may be designated by
the Board of Directors or, in the absence of such designation, at the principal
executive office of the Corporation. The minutes shall be kept in written form,
and the accounting books and records shall be kept either in written form or in
any other form capable of being converted into written form. The minutes and
accounting books and records shall be open to inspection upon the written demand
of any shareholder or holder of a voting trust certificate, at any reasonable
time during usual business hours, for a purpose reasonably related to the
holder's interests as a shareholder or as a holder of a voting trust
certificate. The inspection may be made in person or by an agent or attorney
and shall include the right to copy and make extracts. The rights of inspection
set forth in this Section 3 shall extend to the equivalent records of each
subsidiary corporation of the Corporation.
SECTION 4. INSPECTION BY DIRECTORS.
Every director shall have the absolute right at any reasonable time to
inspect all books, records and documents of every kind and the physical
properties of the Corporation and each of its subsidiary corporations. Such
inspection by a director may be made in person or by an agent or attorney, and
the right of inspection includes the right to copy and make extracts of all
documents.
SECTION 5. ANNUAL REPORT TO SHAREHOLDERS.
The annual report to shareholders referred to in Section 1501 of the
California General Corporation Law is expressly dispensed with, but nothing
herein shall be interpreted as prohibiting the Board of Directors from issuing
annual or other periodic reports to the shareholders of the Corporation as they
consider appropriate.
SECTION 6. FINANCIAL STATEMENTS.
A copy of any annual financial statement and any income statement of the
Corporation for each quarterly period of each fiscal year, and any accompanying
balance sheet of the Corporation as of the end of each such period, that has
been prepared by the Corporation shall be kept on file in the
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principal executive office of the Corporation for twelve months, and each such
statement shall be exhibited at all reasonable times to any shareholder
demanding an examination of any such statement or a copy shall be mailed to any
such shareholder.
If a shareholder or shareholders holding at least 5% of the outstanding
shares of any class of stock of the Corporation makes a written request to the
Corporation for an income statement of the Corporation for the three-month,
six-month or nine-month period of the then-current fiscal year ending more than
30 days before the date of the request and a balance sheet of the Corporation as
of the end of such period, the Chief Financial Officer shall cause such
statement to be prepared, if not already prepared, and shall deliver personally
or mail such statement to the person making such request within 30 days after
the receipt of such request. If the Corporation has not sent to the
shareholders its annual report for the last fiscal year, this report shall
likewise be delivered or mailed to the shareholder or shareholders within 30
days after such request.
The Corporation shall also, on the written request of any shareholder, mail
to the shareholder a copy of the last annual, semiannual or quarterly income
statement that it has prepared and a balance sheet as of the end of that period.
The quarterly income statements and balance sheets referred to in this
Section 6 shall be accompanied by the report, if any, of any independent
accountants engaged by the Corporation or the certificate of an authorized
officer of the Corporation that the financial statements were prepared without
audit from the books and records of the Corporation.
SECTION 7. ANNUAL STATEMENT OF GENERAL INFORMATION.
The Corporation shall, within the statutorily required time period, file
with the Secretary of State of the State of California, on the prescribed form,
a statement setting forth the authorized number of directors, the names and
complete business or residence addresses of all incumbent directors, the names
and complete business or residence addresses of the Chief Executive Officer,
Secretary and Chief Financial Officer, the street address of its principal
executive office or principal business office in this state and the general type
of business constituting the principal business activity of the Corporation, and
a designation of the agent of the Corporation for the purpose of service of
process, all in compliance with Section 1502 of the Corporations Code of
California.
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ARTICLE VIII
GENERAL CORPORATE MATTERS
SECTION 1. RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING.
For purposes of determining the shareholders entitled to receive any
dividend or other distribution or allotment of any rights or entitled to
exercise any rights with respect to any other lawful action (other than action
by shareholders by written consent without a meeting), the Board of Directors
may fix, in advance, a record date, which shall not be more than 60 days before
any such action, and in such case only shareholders of record on the date so
fixed are entitled to receive such dividend, distribution or allotment of rights
or to exercise the rights, as the case may be, notwithstanding any transfer of
any shares on the books of the Corporation after the record date so fixed,
except as otherwise provided in the California General Corporation Law.
If the Board of Directors does not so fix a record date, the record date
for determining shareholders for any such purpose shall be at the close of
business on the day on which the Board adopts the applicable resolution or the
sixtieth day before the date of such action, whichever is later.
SECTION 2. CHECKS, DRAFTS, EVIDENCE OF INDEBTEDNESS.
All checks, drafts or other orders for payment of money, notes or other
evidences of indebtedness issued in the name of or payable to the Corporation
shall be signed or endorsed by such person or persons and in such manner as,
from time to time, shall be determined by resolution of the Board of Directors.
SECTION 3. EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS.
The Board of Directors, except as otherwise provided in these Bylaws, may
authorize any officer, officers, agent or agents to enter into any contract or
execute any instrument in the name of and for the Corporation; such authority
may be general or confined to specific instances; and, unless so authorized or
ratified by the Board of Directors or within the agency power of an officer, no
officer, agent or employee shall have any power or authority to bind the
Corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or in any amount.
SECTION 4. CERTIFICATES FOR SHARES.
A certificate or certificates for shares of the capital stock of the
Corporation shall be issued to each shareholder when
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any of such shares are fully paid; the Board of Directors may authorize the
issuance of certificates or shares as partly paid, provided that such
certificates shall state the amounts of the consideration paid and owing. All
certificates shall be signed in the name of the Corporation by the Chairman of
the Board or Vice-Chairman of the Board or the President or Vice-President and
by the Chief Financial Officer or an Assistant Treasurer or the Secretary or any
Assistant Secretary, certifying the number of shares and the class or series of
shares owned by the shareholder. Any or all of the signatures on the
certificate may be facsimile. In case any officer, transfer agent or registrar
who has signed, or whose facsimile signature has been placed on, a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if such person were an officer, transfer agent or registrar at the date of
issue.
SECTION 5. LOST CERTIFICATES.
Except as provided in this Section 5, no new certificate for shares shall
be issued to replace an old certificate unless the latter is surrendered to the
Corporation and canceled at the same time. The Board of Directors may, in case
any share certificate or certificate for any other security is lost, stolen or
destroyed, authorize the issuance of a replacement certificate on such terms and
conditions as the Board may require, including a provision for indemnification
of the Corporation secured by a bond or other adequate security sufficient to
protect the Corporation against any claim that may be made against it, including
any expense or liability, on account of the alleged loss, theft or destruction
of the certificate or the issuance of the replacement certificate.
SECTION 6. REPRESENTATION OF SHARES OF OTHER CORPORATIONS.
The Chairman of the Board, the President, any Vice-President or any person
authorized either by the Board of Directors or by any of the foregoing
designated officers is authorized to vote on behalf of the Corporation any and
all shares of any other corporation or corporations standing in the name of the
Corporation. The authority granted to such officers to vote or represent on
behalf of the Corporation any and all shares held by the Corporation in any
other corporation or corporations may be exercised by any of such officers in
person or by any person authorized to do so by proxy duly executed by such
officers.
SECTION 7. CONSTRUCTION AND DEFINITIONS.
Unless the context requires otherwise, the general provisions, rules of
construction and definitions in the California General Corporation Law shall
govern the construction
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of these Bylaws. Without limiting the generality of this provision, the
singular number includes the plural, the plural number includes the singular,
any indication of gender includes both genders and the term "person" includes a
corporation, a natural person, an association and a partnership.
ARTICLE IX
AMENDMENTS
SECTION 1. AMENDMENT BY SHAREHOLDERS.
New bylaws may be adopted or these Bylaws may be amended or repealed by the
vote or written consent of holders of a majority of the outstanding shares
entitled to vote; provided, however, that if the Articles of Incorporation set
forth the number of authorized directors of the Corporation, the authorized
number of directors may be changed only by an amendment of such Articles of
Incorporation.
SECTION 2. AMENDMENT BY DIRECTORS.
Subject to the rights of the shareholders as provided in Section 1 of this
Article IX, bylaws, other than a bylaw or an amendment of a bylaw changing the
authorized number of directors, may be adopted, amended or repealed by the Board
of Directors.
ARTICLE X
CLASS B COMMON STOCK
SECTION 1. NON-TRANSFERABILITY.
The Class B Common Stock will be non-transferable.
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